These days the main questions in constitutional theory involve questions of interpretation – in particular, whether one should follow the original meaning of the Constitution or its evolving meaning or some mixture of the two. (One might also see this question as involving a related question – whether one’s theory of the Constitution should be about the document or about the practices of the country over time.)

But some years ago, constitutional theory focused on a different question – what is the dominant character of the Constitution. Some people argued that the Constitution is a fundamentally democratic document, essentially allowing a majority of the country to rule, except where the process of democratic rule is subject to infirmities. That is one way to understand John Hart Ely’s incredibly important book, Democracy and Distrust. The apparently majoritarian features of the Constitution – that legislation can be passed by a majority of the legislature – is the strongest support for this view.

Other people argue that the Constitution is fundamentally about protecting individual rights. These people can point to the Bill of Rights as well as the 14th Amendment as the main support for their view. These people might also point towards the Lockean roots of the political theory that inspired the Constitution.

Ever since the Warren era of expansive individual rights jurisprudence, leading to the Court’s substantive due process jurisprudence culminating in Roe v. Wade, jurists, as well as the public at large, have grappled with the issue of judicial activism in the individual rights area. At the same time, by the time of the Warren Court, constitutional law had evolved to the point of denying the courts any meaningful role in enforcing the limited government principles incorporated in the Constitution. This essay, recognizing the continuing controversy over the Court’s individual rights jurisprudence, attempts to reconcile these two different strains in constitutional…

Responses

There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue.
What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with…

Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not…

The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers.…

Ken Masugi argues that conservatives and libertarians must be “radical to grasp the truth.” He certainly is radical in casting Robert Nisbet and, with him, it would seem, other Burkeans who see little platoons rather than isolated individuals as the building blocks of society outside “the foundation of American politics,” which Ken identifies with the Declaration of Independence.

This July 4, like countless prior, will witness paeans to the Declaration of Independence, celebration of its unalienable rights, laments of their demise amid spreading statism and the shrinking space left for the individual in American civic life—all of which might be compelling if the Declaration said any such thing. A more suitable tribute on the document’s 237th birthday would be to recover its actual meaning and proper context. (That context, I should indicate before proceeding further, I learned from George W. Carey, to whom the bulk of the ensuing insights—like most of those I claim for myself—are hereby attributed.)

The typical understanding of the Declaration’s unalienable rights is that they are the immutable and unregulable property of the individual, who is thereby rendered immune from the jurisdiction of the community with respect to his or her life, liberty and pursuit of happiness. But a moment’s inspection renders this individualist understanding absurd.

As Mitt Romney continued his hapless class warfare rhetoric, the federal judiciary followed suit. In the most extreme post-Brown federal court opinion on equal protection ever issued, the Sixth Circuit held, in an en banc opinion, that certain unspecified minorities have privileged status in the American constitutional order. This promotion of classes over individual rights of course overthrows the American founding’s basic principle of equality of individual rights and the separation of powers that follows from it.

At issue was Proposal 2, whose victory in 2006 via popular vote of 58-42% amended the Michigan Constitution to reject race, ethnic, and sex preferences in public institutions, including universities.

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